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# TheAttorney General ofTexas January 14, 1982 MARK WHITE Attorney General
Supreme Court Building P.0. BOX 12546 Austin, TX. 78711 512/475-2501 Telex 9101674-1387 Telecopier 512/4750266

1607 Main St., Suite 1400 Dallas, TX. 75201 214i7428944

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1220 Dallas Ave., Suite 202 Houston, TX. 77002 713/650-0666

606 Broadway, Suite 312 Lubbock. TX. 79401 6061747-5236

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An Equal OppOrtunityI Affirmative Action Employer Honorable Neal Pfeiffer Criminal District Attorney Bastrop County P. 0.Box 753 Bastrop, Texas 78602 Opinion No.MW-424 He: Provision of street cleaning services byageneral law city and assessment of fees therefor Dear Mr. Pfeiffes: You request our opinion as towhether a city incorporated under the general law statutes of the state of Texas can provide street cleaning services and charge fees therefor. Additionally, you request an opinion as to whether such a city can charge such fees to all residents, when the street cleaning services are restricted to the downtown area of the city. The city of Elgin, Texas, proposes toprovide a street cleaning service for the downtown area only and charge fees to all residents for such service. With respect toyour firstquestion, general law cities have only such powers as are granted by statute or by necessary implication therefrom. See Payne V. Massey, 196 S.W.2d 493, 495 (Tex. 1946); Attorney General Opinion H-796 (1976). This is in contrast to the broad powers of home rule cities, which may exercise any power incorporated in their charters that isnot denied by the constitution orby statute. V.T.C.S. art. 1176. General law cities have H...exclusive control and power over the atreeta ...of the city ... to ... clean and otherwise improve said streets..." V.T.C.S. art. 1016. HOWWCX, no statutory authority for general law cities tocharge fees for such service obtains unless such provision is found inarticle 4477-8, section 13,V.T.C.S. *ction 13states inpertinent part: Any public agency or any county may offer solid waste disposal service to persons within its boundaries, may require theuse of such service by anyor all suchpersons, may charge fees therefor, and may establish said service as a utility

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separate from other utilities within its boundaries.... The term "public agency" is defined in article 4477-8, section 3(e), V.T.C.S., to include "any city as defined herein." The word "city" means any incorporated city or town in the state, whether operating under general law orunder itshome rule charter. V.T.C.S. art. 4477-8, 53(d). Therefore, a city such as Elgin is a public agency under article 4477-8, V.T.C.S., empowered to offer a "solid waste disposal service" to persons within its boundaries and charge fees therefor. The statutory definition of "solid waste" refers to the definition found inarticle 4477-7, V.T.C.S., the SolidWaste Disposal Act. V.T.C.S. art. 4477-8, 93(h). Prior to the 1977 amendments to section 2 of article 4477-7, V.T.C.S., that section defined "solid wastelland "municipal waste" as follo"s: (5) 'solidwaste' means all putrescible and

nonputrescrible discarded or unwanted solid materials, includingmunicipal solidwaste... (6) 'municipal solid waste' means solid waste resulting from or incidental to municipal, community, trade, business and recreational activities, including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all other solid waste other than industrial solidwaste. In 1977, the Sixty-fifth Legislature passed two bills amending article 4477-7, section 2,V.T.C.S. Senate Bill No. 764, along with other changes, excised the phrase "including municipal solid waste" from the definition of "solid waste." The definition of "municipal solid waste" was changed only by substituting the word "commercial" for thewords "trade, business." On the other hand, in Senate Bill No. 1139 the definitions of "solidwaste" and "municipal solidwaste" have the samewording as the statute prior to the 1977 amendments. That is, the definition of solidwaste specifically includesmunicipal solidwaste. Both Senate Bill No. 764 and Senate Bill No. 1139 were finally passed by the house on May 13, 1977. The senate concurred in house amendments toboth bills onMay 17, 1977. The governor signed Senate BillNo. 764onMay 30, 1977. Itbecame effective onAugust 29, 1977.

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The governor signed Senate Bill No. 1139 on June 16, 1977. Its effective datewas setat September 1, 1977. Two acts on the same subject passed by the same session of the legislature must be reconciled and construed as one act. Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946). If one act expressly repeals the other or there is an irreconcilable repugnancy between them, the provision approved lastwill prevail. Id.at 85. TheTexas Supreme Court has stated that:

...nothing short of expressions so plain and positive as to forceupon themind an irresistible conviction, or absolute necessity, will justify a court inpresuming, that itwas the intention of the legislature that their actspassed at the same session, should abrogate and annul oneanother. Cainv. State, 20Tex. 355, 361 (1857). Accordingly, Senate BillNo. 764and Senate BillNo. 1139must be read together and reconciled, if possible. The acts are not irresistibly repugnant. The definition of "solidwasten inSenate BillNo. 764 states:

(5) 'solidwaste' means all putrescible and nonputrescible discarded or unwanted solid materials, including garbage, refuse, sludge from a waste treatment plant or air pollution control facility, and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial commercial, mining and agricultural operations and from community activities... This definition isbroad enough to include the items inthedefinition of municipal solid waste. Consequently, street cleanings are within theambit of "solidwaste." (Obviously, there isno clear legislative intent to exclude "municipal solid waste" from the term "solid waste"). It follows that a "solid waste disposal service" asused in article 4477-8, section 13, V.T.C.S., may include the service of street cleaning under these definitions. You also ask if fees can be charged to all the residents of the city if street cleaning services are provided for only a certain section of the town, specifically the downtown area which presumably is ingreatest need of street cleaning.

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Under our reading of section 13, such a practice is precluded. The statute plainly states that apublic agency may offer solidwaste disposal service topersons within itsboundaries andmay require the use of such service by any or all such persons and may charge fees therefor. By use of the phrase "such persons" reference ismade to thepersons towhom the service isoffered. Thus, only those persons to whom the service is offered, that is, who may actually have the street abutting theirhome orbusiness cleaned,maybe charged a fee. SUMMARY General law cities may provide street cleaning services and charge fees therefor under article 4477-8, section 13,V.T.C.S. Only persons who receive street cleaning services may be charged such fees.

WHITE Attorney General ofTexas JOHNW. FAINTER, JR. FirstAssistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared byDouglas Fraser Assistant Attorney General APPROVED: OPINION COMMITTEE SusanL. Garrison, Chairman Jon Bible Douglas Fraser Rick Gilpin JimMoellinger ,

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